Transcending the Boundaries of Urban Commons – Villages within the City in China Ting Xu and Wei Gong School of Law, University of Sheffield

1.
Transcending the Boundaries of Urban Commons –
Villages within the City in China
•Ting Xu and Wei Gong
•School of Law, University of Sheffield
•ting.xu@sheffield.ac.uk; w.gong@sheffield.ac.uk

2. British Academy International
Partnership and Mobility Scheme
‘Diversifying Ownership of Land?:
Communal Property in the UK and
China’, 2014-2017
http://www.communalpropertyresearchnetwork.o

3. The trilogy of ownership
Heller, 2008, The Gridlock Economy, p.33. figure 2.4

4. A mixed property regime
Eg, A Lehavi, the Construction of Property Norms, Institutions,
Challenges, Cambridge University Press, 2013.

5. Private Property v. Communal Property?
• ‘the sole and despotic dominion which one man claims and
exercises over the external things of the world, in total
exclusion of the right of any other individual in the universe’.
W Blackstone, Commentaries on the Laws of England, Volume I, Of the Rights of
Persons (Oxford, Clarendon Press, 1766) 2.
• Emphasis: The right to exclude; individual ownership
• Individual ownership equals private property?
• ‘Private property is inclusive of individual property, but the
converse does not hold’ (Krier, 2009, ‘Evolutionary Theory
and the Origin of Property Rights’, p. 145).
• Communal Property as the opposite property regime?
• Group access communal property also embodies the right to
exclude.

6. Open access commons v. group access
commons
•Open access commons: everyone in the world has a
right to use the resource; no rules regarding
access/entry and exit
•Group/limited access commons: a group of
commoners can exclude outsiders but cannot
exclude each other within that group; rules
regarding entry and exit; the right to exclude;
strong homogeneity
•Group/limited access commons as a hybrid
property regime where private property and
communal property co-exist.

7. Definition of communal property
• ‘land and other resources owned and/or used and
controlled by a self-interested and self-governing
group of people defined by reference to some
common characteristics such as kinship, locality, or
common interest’.
• A Clarke, ‘Integrating Private and Collective Land Rights:
Lessons from China’ (2013) 7 Journal of Comparative Law
177, 181.

8. Construction of Communal Property
Resources: used communally or collectively
Institutions governing the resource (communities at
different scales, held together by common characteristics
eg, kinship, locality, or a variety of bonds eg, sense of
belonging, values, ideologies, common interest);
interactions between communities, individuals and the
state; social interactions, bringing people in ‘property’)
Rules (access/entry, exit, use, control, conservation,
sharing, self-governing; from the grassroots rather than
simply imposed from the top)
Rights and claims to communal property

9. What if the rules regarding entry and exit
are relaxed, and strong homogeneity is
broken down…

10. Ownership in post-Mao China
•Civil law-making in the post-1978 era has to a
significant extent returned to the German
Civil Law framework
•A tri-ownership system has evolved:
state ownership
collective ownership
private ownership
Public ownership

11. Collective ownership
• Property Law (2007), Chap V
Article 59: ‘The immovables and movables collectively owned by the
farmers belong to the members of the collective.’
• Article 10 of the Land Administration Law (2004) and Article 60 of
the Property Law (2007) provide that collectively owned land should
be managed and administered by the village collective economic
organisation (not clearly defined in law), the villagers’ committee
(administrative villages), villagers’ teams or a town or township.

13. The right to use
•Ownership and the right to use
•The right to use: the right to access/not to be
excluded

14. Fragmentation of use rights to rural land
Collective
ownership
Use
rights
Attached to identity as
farmers, members of the
collectives
Rural households
(rights to farming)
Individual farmers, Rural
households, collective
economic organisations
(rights to construction)
Include: use rights to
Residential plots
(rights to housing)
Transfer/lease
?
Informal
norms
Unintended
consequences:
the emergence
of de facto
property
markets and
villages within
the city

15. Conclusion
•urban commons as a hybrid property regime with
open boundaries?
•Thank you!
•Comments and questions welcome!